Introduction: Why Consent Agreements Matter in TTAB Disputes

Consent agreements occupy a unique and often misunderstood position in Trademark Trial and Appeal Board proceedings. On paper, they appear simple. Two parties agree that their respective trademarks can coexist without causing confusion. In practice, however, the TTAB does not treat all consent agreements equally. Some are powerful enough to overcome an otherwise strong likelihood of confusion refusal or opposition. Others are given little weight or ignored entirely.

For brand owners navigating TTAB litigation, understanding how the Board evaluates consent agreements is critical. These agreements are not automatic shields, nor are they irrelevant formalities. Their effectiveness depends on substance, context, and how well they address the real world concerns that drive likelihood of confusion analysis.

The Legal Framework Governing Consent Agreements Before the TTAB

Likelihood of confusion remains the central inquiry in most TTAB oppositions and refusals. The Board applies the DuPont factors to determine whether consumers are likely to believe that goods or services originate from the same source. Consent agreements intersect with this analysis because they represent the views of the parties most familiar with their respective markets.

The TTAB has long recognized that consent agreements can be highly probative. The rationale is straightforward. If sophisticated brand owners believe confusion is unlikely, that assessment deserves consideration. However, the Board also makes clear that it is not bound by private agreements. The TTAB must independently assess the public interest and cannot simply defer to the parties’ conclusions.

Not All Consent Agreements Are Created Equal

One of the most common misconceptions in TTAB practice is that the mere existence of a consent agreement resolves likelihood of confusion concerns. The Board repeatedly rejects this assumption. Instead, it closely examines the content of the agreement and the circumstances under which it was negotiated.

Bare bones agreements that simply state the parties consent to registration without further explanation tend to carry minimal weight. In contrast, detailed agreements that demonstrate thoughtful consideration of potential confusion are far more persuasive. The TTAB looks for evidence that the parties anticipated real marketplace conditions and implemented concrete safeguards.

Key Factors the TTAB Considers When Evaluating Consent Agreements

The Board evaluates consent agreements through a practical lens. One critical factor is whether the agreement explains why confusion is unlikely. Agreements that merely recite legal conclusions do little to assist the analysis. Those that describe differences in trade channels, target consumers, or marketing practices are viewed more favorably.

Another important consideration is whether the agreement includes provisions designed to avoid confusion. These may involve restrictions on logo design, branding presentation, or the scope of goods and services. While the TTAB does not require specific clauses, it consistently rewards agreements that demonstrate proactive risk management.

The sophistication of the parties also plays a role. Agreements between experienced brand owners operating in related industries tend to receive more deference than those involving less developed marks or unclear commercial contexts.

Consent Agreements in TTAB Oppositions Versus Ex Parte Prosecution

The weight given to consent agreements can vary depending on procedural posture. In ex parte prosecution, where the dispute is between the applicant and the USPTO, consent agreements are evaluated without an opposing party actively challenging their substance. Even so, examining attorneys and the Board still scrutinize whether the agreement meaningfully addresses confusion.

In inter partes proceedings such as oppositions and cancellations, consent agreements are evaluated in a more adversarial context. An opposing party may argue that the agreement is self serving or insufficiently protective of consumers. In these cases, the TTAB often examines whether the agreement aligns with the evidentiary record developed during trial.

The Relationship Between Consent Agreements and Other DuPont Factors

Consent agreements do not operate in isolation. The TTAB evaluates them alongside other DuPont factors, including the similarity of the marks, relatedness of goods or services, and strength of the prior mark. In cases where these factors strongly favor confusion, a weak consent agreement is unlikely to tip the balance.

Conversely, when the evidence is mixed, a well drafted consent agreement can be decisive. The Board has repeatedly emphasized that such agreements may reduce the weight of other factors by demonstrating that confusion is unlikely in real world conditions.

Common Mistakes That Undermine Consent Agreements Before the TTAB

Many consent agreements fail because they are drafted with prosecution convenience rather than litigation scrutiny in mind. Overly generic language, lack of specificity, and failure to address how the marks will actually be used are frequent shortcomings.

Another common mistake is relying on the agreement without supporting evidence. While consent agreements are probative, they are not substitutes for a well developed record. Parties that rely solely on the agreement without corroborating testimony or market evidence often find their arguments weakened.

Strategic Considerations for Brand Owners and Practitioners

From a strategic perspective, consent agreements should be negotiated and drafted with the TTAB’s expectations in mind. This requires anticipating how the Board will interpret the agreement years later, often in the context of a contested proceeding.

Your brand is everything, and agreeing to coexist should never be treated as a shortcut. Thoughtful agreements can preserve brand value while avoiding costly litigation, but only when they reflect a realistic understanding of consumer perception.

Experienced trademark counsel can help ensure that consent agreements serve both immediate registration goals and long term enforcement strategy. Consider us your legal consigliere when navigating these complex decisions.

Conclusion: When Consent Agreements Truly Influence TTAB Outcomes

Consent agreements can be powerful tools in TTAB practice, but their effectiveness depends on substance rather than form. The Board values agreements that demonstrate careful analysis, realistic safeguards, and respect for the public interest.

Understanding how the TTAB evaluates these agreements allows brand owners to approach coexistence strategically rather than reactively. When properly drafted and supported, consent agreements can meaningfully influence likelihood of confusion analysis and help protect what matters most.

If you are considering a consent agreement or facing a TTAB dispute involving one, thoughtful planning and experienced guidance can make all the difference. Let’s simplify this IP process together and ensure your brand remains protected for the long term.